If Council passes the resolution to place a measure “confirming” the Rent Stabilization Act on the November ballot, it will have taken the first step toward ending up where the Council members invariably swear they never want to go: in court.
What is more, the issue to be litigated will have nothing to do with the legality of rent control. Instead, the case will focus on the legitimacy of the procedure that Council, at staff’s recommendation, has chosen to use to defend the ordinance.
And if this happens, Council will have no one to blame but itself – and the City Attorney.
We’ll start with the most basic question: Does Council have the legal authority to place the measure on the ballot in the first place?
The resolution drafted by the City Attorney states that Council is submitting the ballot measure “pursuant to Elections Code section 9222.”
That section reads, in relevant part, as follows:
The legislative body of the city may submit to the voters, without a petition therefor, a proposition for the repeal, amendment, or enactment of any ordinance, to be voted upon at any succeeding regular or special city election, and if the proposition submitted receives a majority of the votes cast on it at the election, the ordinance shall be repealed, amended, or enacted accordingly.
The problem is, the ballot measure Council wants to place on the ballot does not fit within any of the three bold-faced categories: It surely does not “repeal” the Rent Stabilization Act. It does not “amend” the Rent Stabilization Act – Exhibit A to the resolution sets forth the full text of the ordinance adopted by Council in haec verba. And it does not “enact” the Rent Stabilization Act – Council already did that on March 1, when it passed the ordinance on its second reading.
Instead, the stated purpose of the ballot measure is for voters to “confirm” the ordinance previously adopted by Council. We suppose that one could argue that “confirming” an existing law is no different than “enacting” a new one – but we’re not sure a judge would agree. It is a basic principle of statutory construction that the words of a statute like Elections Code section 9222 are to be given their “plain meaning.” And there is no dictionary, legal or otherwise, that defines “confirm” as synonymous with “enact.”
Or at least a suit challenging the ballot measure, if it passes, could reasonably contend. We would have a lot more confidence about the validity of the measure if judicial precedent existed approving the procedure of asking voters to “confirm” an ordinance previously enacted by a city council. But our LEXIS search yielded no such cases. We might even take comfort if we knew that other California cities had done the same thing and gotten away with it. But our Google search came up empty.
(In case you were wondering, we don’t think the city Charter would help the City’s defense. Although the resolution does not cite the Charter as enabling authority, section 3-3 of the Charter states that, “The Council may, on its own motion, submit to the electorate by initiative or referendum any proposed resolution or ordinance which could be enacted by the Council.” But this provision can be read to authorize the ballot measure drafted by the City Attorney only if you strike the word “proposed” and replace “could be” with “has been.” And most judges aren’t willing to rewrite the law – especially a “constitution” like a city charter – in such a fashion.)
Okay, now assume that Council does have the legal authority to place the measure on the ballot. Let’s explore the possible outcomes – and the potential legal challenges.
If Council accepts staff’s recommendation on Monday night, there will be two rent-related measures on the November ballot: the Council-sponsored measure to “confirm” the Rent Stabilization Act and the initiative backed by the Alameda Renters Coalition to amend the city Charter. If either of the two measures pass, and the other doesn’t, there should be no problem.
Should the voters approve the Council-sponsored ballot measure and turn down the ARC initiative, the Rent Stabilization Act will stay on the books (with whatever benefit “confirmation” confers). By the same token, should the voters do the opposite, the Charter will be amended to make rent control and just-cause eviction the law in Alameda. In that event, since an ordinance is invalid if it conflicts with the charter, the Rent Stabilization Act will bite the dust.
The difficulty arises if both measures win – or if both lose.
Take the latter scenario first. If both the Council-sponsored ballot measure and the ARC initiative are defeated, the City Attorney undoubtedly would contend that the Rent Stabilization Act remains in effect. After all, the initiative that sought to replace the ordinance failed. But wait a minute: under this scenario, the ballot measure that sought to “confirm” the ordinance also failed. Go back to the dictionary: one of the antonyms for “confirm” is “reject.” If a majority votes against “confirming” the Rent Stabilization Act, hasn’t the electorate effectively “rejected” the Act? If so, how can Council continue to enforce the ordinance?
We can’t predict how a court would rule on this argument. But we do know that, by placing a measure on the ballot to “confirm” the Rent Stabilization Act, Council will be creating the risk of a negative vote whose legal consequences are unknown. If the measure loses and an action for injunctive relief is brought against the City, the wound will be self-inflicted.
Now let’s suppose that both the Council-sponsored ballot measure and the ARC initiative pass. In that case, we almost can guarantee that, because of the way the City Attorney has written the measure, a lawsuit will follow.
The California Supreme Court has laid down the basic rules governing the case where two ballot measures addressing the same subject both pass at the same election. If the two successful measures are “competing” or “conflicting,” only the provisions of the measure receiving the higher number of affirmative votes become operative. None of the provisions in the other measure takes effect. By contrast, where the two successful measures are “complementary” or “supplementary,” they are compared provision-by-provision. If a conflict exists on any particular item, the provision in the measure with the higher vote total prevails. But for items where there is no conflict, the provisions in the measure with the lower vote total are enforceable as well.
The characterization of two ballot measures as “competing” or “complementary” depends on whether they represent alternative ways to establish a “comprehensive regulatory scheme.” (Think: campaign finance reform). If they do, the “all or nothing” rule applies: all of the provisions of the top vote-getter – and none of those of the second-place finisher – go into force. If they don’t, the provision-by-provision process is used to amalgamate the two measures.
The Rent Stabilization Act and the ARC initiative fit the description of “competing” measures to a tee, since they set up alternative – and conflicting – regimes for regulating rent increases and evictions. The former does not impose a cap on rent increases; the latter does. The former permits “no-cause” evictions; the latter does not. So if the basic rules decreed by the California Supreme Court are followed, the ARC initiative would take effect, in its entirety, if it got more votes than the Council-sponsored ballot measure, and vice versa.
But that’s not how the City Attorney has written the ballot measure. Instead, for the case where both measures pass, the drafters have picked the “all or nothing” rule to govern when the Council-sponsored measure gets more votes, and the “provision-by-provision” rule to govern when the ARC initiative gets more votes. If the ARC initiative finishes second to the Council-sponsored measure, the initiative is deemed “null and void in [its] entirety and without any legal effect.” But if the ARC initiative is the top vote-getter, only those provisions of the initiative “that are in direct and irreconcilable conflict” with the provisions of the Rent Stabilization Act become law, “and all other provisions of this City Council sponsored measure shall become valid and binding.”
The phrase “Heads I win, tails you lose” may come to mind.
How can this outcome be justified in light of the rules stated by the Supreme Court? Well, because it’s what the voters “intended.” If you don’t believe us, just look at section 5 of the ballot measure: After setting forth the scheme described above, it states, “The voters expressly declare this to be their intent, regardless of any contrary language in any other ballot measure or measures.”
Here’s the game the City Attorney is playing: When the Supreme Court first pronounced the rules for deciding between two successful ballot measures addressing the same subject, it created a loophole. These rules apply, the Court stated, “unless a contrary intent is apparent in the ballot measures.” Aha, the clever drafter will say: All I need to do to stand the usual rules on their head is to stick in a sentence stating that this is what the voters intended!
We can see the litigators lining up on the courthouse steps already.
If both measures pass and the Council-sponsored ballot measure gets more votes than the ARC initiative, the renters’ legal team would challenge application of the “all-or-nothing” rule on the grounds that it’s inappropriate in a case where one competing measure – the ARC initiative – is a Charter amendment and the other – the Council-sponsored measure – merely “confirms” an existing ordinance.
Remember, ordinances are invalid if they conflict with the charter. If the ARC initiative amending the Charter were the only measure on the ballot and it passed, Council could not invalidate it by later adopting a conflicting ordinance. The result should be no different, the renters’ lawyers would argue, simply because the conflicting ordinance was placed on the ballot and passed – by whatever margin – at the same election. Charter amendments always win.
By the same token, if both measures pass and the ARC initiative gets more votes than the Council-sponsored ballot measure, the grounds for a legal challenge to use of the “provision by provision” process would be even stronger. Surely, the City would concede that the two measures are “competing” and not “complementary.” In such a case, the renters’ advocates would argue, all of the ARC initiative, and none of the Rent Stabilization Act, should go into effect. That’s what the Supreme Court’s rules say.
And the renters’ barristers would object mightily to employing any fiction about “voter intent” to justify deviating from the usual rules. The City claims that a single sentence in the Council-sponsored ballot measure suffices to show that the voters intended that the “Heads I win, tails you lose” scheme should be used. But consider this sentence from the ARC initiative: “This Charter Amendment shall supersede any ordinance passed by the Alameda City Council covering the area of rents or evictions.” If the ARC initiative gets more votes than the Council-sponsored ballot measure, why isn’t this sentence the definitive declaration of “voter intent”?
But even if the City wins the interpretation battle, the lawsuit won’t be over. Under the “provision-by-provision” process, someone has got to determine which provisions of the ARC initiative “are in direct and irreconcilable conflict” with the Rent Stabilization Act and which are not. Who’s going to do this? The City Attorney? Council itself? No, it will have to be a judge.
Again, we’re reluctant to predict how a court would rule on any of these legal issues, and we found no cases in which an appellate court considered anything like section 5 of the ballot measure drafted by the City Attorney. But it is precisely the absence of direct precedent that makes us so confident that litigation will ensue if the measure passes. When the issue is one of “first impression,” the temptation becomes overwhelming to file suit and see what a Superior Court judge will say. And if the legal challenge fails at the trial-court level, there is always the First District Court of Appeals, and maybe even the California Supreme Court.
Indeed, having gone through this analysis, we’re almost ready to consider changing our area of specialization. By placing the measure on the ballot, Council will have created work for state-court litigators for years to come. So, from a personal perspective, we take our hat off to Ms. Kern and her staff.
Somehow, though, we doubt that our notoriously litigation-averse Council members will join in the applause. They can choose to put the measure drafted by the City Attorney on the ballot to show their support for the rent stabilization ordinance they previously passed. But if they do, they should make sure that future city budgets contain a hefty line item for outside counsel expense.
ARC initiative: ARC ballot measure
Rent Stabilization Act: City rent stabilization ordinance
Resolution placing Council-sponsored measure on ballot: 2016-08-08 Ex. 1 to staff report – Resolution (2)
Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com., 51 Cal.3d 744 (1990): Taxpayers to Limit Campaign Spending v. Fair Pol. Pract
Yoshisato v. Superior Court, 2 Cal.4th 978 (1992): Yoshisato v. Superior Court_ 2 Cal. 4th 978